Work Product Doctrine or Atorney-Client Privilege For The P.I.
I have been involved in a very interesting discussion, with some of the most knowledgeable Private Investigators of our time. And I thought that remnants of that discussion should be be made available to other P.I.s that may not have had the occasion to participate in this discussion.
First, the discussion centered around what type of shielding a Private Investigator has for his or her work product that he or she may be having to share with the attorney he or she is working with. Most people believe this would fall under Attorney-Client Privilege, but this is not the case. Private Investigators are shielded by what is referred to as “The Work Product Doctrine”, and below are some excerpts from the discussion I participated in that will explain it a little better:
I think that it is important to remember here that Attorney-Client
Privilege and Work Product Doctrine are two completely separate
animals.. The Work Product Doctrine is more inclusive than
Attorney-Client Privilege, but Attorney-Client Privilege is more
powerful than the Work Product Doctrine.
I had a case not too long ago that caused me to have to research this,
and to bring my research to some attorneys, who then researched it and
said my research appeared to be accurate.
My research was done from several areas of the Internet, starting with
Wikipedia (in my opinion, this is always a good starting point) and
then reviewing some case law and some Federal Statutes.
Below, anything in quotes is NOT my own words:
Work Product Doctrine:
Under the work-product doctrine, “tangible material or its intangible
equivalent” that is collected or prepared in anticipation of
litigation is not discoverable, and may be shielded from discovery
by a Protective Order, unless the party seeking discovery can
demonstrate that the sought facts can only be obtained through
discovery and that those facts are indispensable for impeaching or
substantiating a claim. That is, the party unable to obtain the
information has no other means of obtaining the information without
undue hardship. For example, the witness may have left the country.
Where the required showing is made, the court will still protect
mental impressions of an attorney by redacting that part of the
document containing the mental impressions.
Comparison with attorney-client privilege
The work-product doctrine is more inclusive than attorney-client
privilege. Unlike the attorney-client privilege, which includes only
communications between an attorney and his client, work-product
includes materials prepared by persons other than the attorney
himself: The materials may have been prepared by anybody as long as
they were prepared with an eye towards the realistic possibility of
impending litigation. Additionally, it includes materials collected
for the attorney such as interrogatories, signed statements, other
information acquired for the prosecution or defense of a case,
“memoranda, briefs, communications . . . other writings prepared by
counsel for his own use in prosecuting his client’s case . . . mental
impressions, conclusions, opinions, or legal theories.”
However, the work-product doctrine is also less powerful than the
attorney-client privilege because it is not a privilege, and therefore
may be overcome by a showing of necessity, as described above.
The work-product doctrine originated in the 1947 case of Hickman v.
Taylor, in which the Supreme Court affirmed a United States Court of
Appeals for the Third Circuit decision which excluded from discovery
of oral and written statements made by witnesses to a defendant’s
attorney. The Supreme Court, acting at the recommendation of the
Advisory Committee of the Judicial Conference, later enshrined this
doctrine formally in the Federal Rules of Civil Procedure as Rule
1. ^ “Work-product rule”. Black’s Law Dictionary (Abridged 7th
ed.). (2000). Ed. Bryan G. Gardner. St. Paul, Minn.: West Group.
2. ^ “Work product”. Black’s Law Dictionary.
3. ^ a b c Hickman v. Taylor.
4. ^ “Certain of the Amendments of Federal Rules of Civil Procedure
Adopted by the Supreme Court of the United States on March 30, 1970,
Effective July 1, 1970, With Advisory Committee’s Notes Thereon.”
Reprinted in Kevin M. Clermont, ed. (2006). Federal Rules of Civil
Procedure, and Selected Other Procedural Provisions. New York:
“Hickman v. Taylor, 329 U.S. 495 (1947), is a United States Supreme
Court case in which the Court recognized the work-product doctrine,
which holds that information obtained or produced by or for attorneys
in anticipation of litigation may be protected from discovery under
the Federal Rules of Civil Procedure. The Court’s decision in the case
Find Law Complete Case Document Link:
You can find more information on the intent of the Work Product
Doctrine in the Federal Rules of Civil Procedure as Rule 26(b)(3).
Below I copy those rules for you:
“Rule 26. General Provisions Governing Discovery; Duty of Disclosure
 The most substantial rule, which guides the discovery process.
Subdivision (a) provides for automatic disclosure, which first was
added in 1993. Disclosure requires parties to share their own
supporting evidence without being requested to by the other party.
Failure to do so can preclude that evidence from being used at trial.
This applies only to evidence that supports their own case, not
anything that would harm their case. For example, a plaintiff brings a
case alleging a negligent accident where the defendant damaged the
plaintiff’s boat. The plaintiff would then be required to
automatically disclose repair bills for his damaged property (Since
this would only support his case) (26(a)(1)(c)).
Subdivision (b) is the heart of the discovery rule, and defines what
is discoverable and what is limited. Anything that is relevant is
available for the other party to request, as long as it is not
privileged or otherwise protected. Under §1, relevance is defined as
anything more or less likely to prove a fact that affects the outcome
of the claim. It does not have to be admissible in court as long as it
could reasonably lead to admissible evidence.
However, there are limits to discovery. §2 allows the court to alter
the limits of discovery on the number of depositions, interrogatories,
and document requests if it determines that the discovery sought is
overly burdensome, redundant, unnecessary, or disproportionately
difficult to produce with respect to the importance of the case or
specific issue. Enshrined in §3, the work-product doctrine protects
tangible (and some intangible) items created in anticipation of the
litigation (e.g., a memorandum from an attorney outlining his strategy
in the case). Protecting work product is considered in the interest of
justice because discovery of such work product would expose an
attorney’s complete legal strategy before trial. §4 allows discovery
of experts whose opinions may be presented at trial, but limits
discovery of experts not likely to testify during trial. §5 generally
prohibits the discovery of any material legally privileged
(attorney-client, doctor-patient, etc.), and requires the production
of a “privilege log” which describes the privileged information or
material in a way that allows others to see that (if) it is
privileged, but does not divulge the privileged material.
Subdivision (c) provides for protective orders.
Subdivision (d) specifies the times at which parties may employ the
various methods of discovery.
Subdivision (e) provides for supplementation, which requires a person
to correct any submitted information as it is necessary. For example,
if you submit your medical records, and then your doctor calls you to
say a crucial medical test just came in, you may be required to send
that new report to the other party without being specifically
requested to do so. Subdivision (f) provides a special meeting between
the parties to organize their discovery process; this is a required
step. Subdivision (g) is the good faith rule which provides sanctions
to any party that makes a discovery request or response designed to
thwart justice, cause undue delay, or harass the other party.”
Work Product CAN be made discoverable in some circumstances, but it
has to meet a certain criteria to be discoverable, and the client
paying you directly is NOT a part of that criteria. Work Product can be
discovered if opposing counsel can “demonstrate that the sought facts
can only be obtained through discovery and that those facts are
indispensable for impeaching or substantiating a claim”.
And before this excerpt above was written a well respected and highly experienced Private Investigator (0ver 30 years of experience as a Private Investigator) whom I have had the pleasure of speaking with a few times and the even greater pleasure of debating with a few times named Sue Sarkis (http://www.sarkispi.com/) added this:
For starters, let’s clear up the misconception between the “attorney-client
privilege” and “work product privilege”.
The attorney client privilege relates only to communications between the
attorney and his client outside the presence of others. Anything the attorney
tells you that he has heard form his client which he feels is necessary for
you to know to conduct a proper investigation is, in fact, protected by “work
product doctrine” and you are bound to maintain it confidentially. Once it
goes beyond the four walls of the attorney and their client, attorney-client
privilege be damned.
As an investigator, if you are marching to the direct orders of the attorney
and providing your reports to the attorney, regardless of who is paying the
bill, the “work product doctrine” applies. As is stated at Wikipedia, “the
work-product doctrine protects materials prepared in anticipation of
litigation from discovery by opposing counsel”.
For those who may be joining late, we have been discussing two completely
separate areas of protections; specifically, Atty-Client Communications which
are privileged, and work-product that is generally protected from discovery.
This e-mail is about COMMUNICATIONS.
Clients must be free to talk to their attorneys as they are entitled to two
things per Common Law and the US Constitution:1. Effective Counsel
2. Freedom from self incriminationIf you can grasp the concept, and the logic behind it, everything gets real
clear. For Counsel to be effective, the Client must be able to fully and
frankly disclose everything, good and bad. If that was subject to forced
disclosure, the Client would be denied their Constitutional protection from
self-incrimination.Now, having said that, let me point out that this communications privilege
is actually much older than our Constitution — it has its basis in British
Common Law, and it actually applies to both civil and criminal cases.If the attorney asks you to interview the Client and provide them with an
outline of the Client’s story, they have effectively put you within the loop,
and I have yet to see any case where anyone directly involved in the Client’s
effort to communicate with the attorney, or vice versa, was excluded from this
extremely robust protection.Other communication, outside that loop, may also be protected to the extent
that they relate to an effort to develop a case. In that case, it is
critical to keep in mind the distinction between facts and opinions.
Communications of opinions, impressions, strategies, and that sort of thing are not subject
to discovery — unless they are communications with someone identified as an
“Expert” who is expected to testify as to their opinions. Obviously, it
would be anathema to have an expert testify that he was sure of a ballistic
match who had previously communicated to the prosecutor that he couldn’t say
one way or the other.A report (verbal, written, e-mail, etc.) communicating facts to an attorney
during an investigation is work-product, and it is generally subject to
protections, but it may still be subject to production under some
circumstances.For example, if you interview a witness, and submit a memorandum of
interview, you can usually expect to produce that memo if you call that witness
along with your handwritten notes.
Any Report you write about anything you did may be subject to production if
you later testify about what you did.
According to the Supreme Court once an attorney has decided we are to testify
our reports etc are no longer work product. This is a very clear ruling on what
is and is not covered and when coverage can and can not be.
And we all did some good research, I think it was a learning experience for everyone, and some good publications are going to come from this discussion, I do believe.
This post is here for two purposes, (1) to give the new Private Investigator that may read it some further knowledge that may assist him or her in their work and some research material that they may use to further understand the Work Product Doctrine, and (2) to give credit to the people that contributed so well to this discussion.
As always, I hope someone will benefit from this post.